Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, February 24, 2010

Phillips: Rule 35(a) deadline applies to 3582(c)(2) resentencings

In U.S. v. Phillips, No. 08-17248 (Feb. 23, 2010), the Court held that the seven-day deadline for correction of sentence under Fed. R. Crim. P. 35(a) [now 14-days, as of Dec. 1, 2009] applies to sentences imposed in response to a motion to reduce sentence under 18 U.S.C. § 3582(c)(2). Because the 7-day deadline is jurisdictional, the district court did not have jurisdiction to consider the government’s motion for reconsideration, which was filed more than 7-days after the court resentenced the defendant under § 3582(c)(2). Consequently, the Court vacated the amended sentence and remanded the case with instructions to reimpose the originally (defense-favorable, though legally incorrect) § 3582(c)(2) sentence.

The Court rejected the government’s argument that Rule 35(a) did not apply to § 3582(c)(2) resentencings. The Court noted that while § 3582(c)(2) proceedings are not the same as the original sentencing, the court is still “sentencing.” Further, § 3582 expressly prohibits modification of sentence after it is entered except under specified conditions – not present in this case.